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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Fagan v. Murdoch [1899] ScotLR 36_921 (18 July 1899) URL: http://www.bailii.org/scot/cases/ScotCS/1899/36SLR0921.html Cite as: [1899] ScotLR 36_921, [1899] SLR 36_921 |
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Page: 921↓
[Sheriff-Court of Lanarkshire.
By the first schedule of the Workmen's Compensation Act it is provided that the amount of compensation payable under the Act shall be “( a) where death results from the injury, (1) If the workman leaves any dependants wholly dependent upon his earnings at the time of his death” … a certain sum depending on the amount of his wages. “(2) If the workman does not leave any such dependants, but leaves any dependants in part dependent upon his earnings at the time of his death”… a sum to be fixed by agreement or arbitration. “(3) If he leaves no dependants” … the expenses of deathbed and funeral. Held that the claim of a person in part dependent on a deceased workman is excluded by the fact of his leaving a dependant wholly dependent on him.
This was an appeal at the instance of Robert Murdoch, builder, Glasgow, in an arbitration under the Workmen's Compensation Act at the instance of Patrick Fagan, workman, who claimed £200 as compensation for the death of his son.
The following facts were stated by the Sheriff ( Strachan), as having been proved in the case:—“(1) That said deceased John Fagan died on 28th February 1899, from injuries sustained by him while a workman in the employment of the appellant in the sense of The Workmen's Compensation Act. (2) That the respondent is the father of the said John Fagan, and was partially dependent for his maintenance on his said son at the time of his death. (3) That the average wage of the said John Fagan while in the employment of the appellant was 23s. 6d. per week, so that the total amount of compensation payable by the appellant under the Act was £187. (4) That the said John Fagan was survived by a widow, but no children, and an arrangement was entered into between the appellant and Margaret Skerry or Fagan, then wife now widow of the said John Fagan, under which she accepted the sum of £80 as in full of all claims then competent to her or which might arise through the death of her said husband, in addition to the sum of £20 for funeral expenses. These sums, together with a further sum of £3, were duly paid by the appellant, on which a discharge was granted by the said widow in favour of the appellant, in full ‘of all claims either existing then or to become due on the death of my said husband.’ This discharge forms No. 3 of process. (5) That at the time of said discharge the appellant understood that the said Margaret Skerry or Fagan was the only person entitled to compensation in respect of the death of the said John Fagan. (6) That the widow of the said John Fagan was, on 12th April 1899, four months gone in pregnancy, conform to medical certificate, which forms No. 5 of process.” The Sheriff proceeded:—“On these facts I held that the respondent was partially dependent on his son at the time of his death, and I awarded, him the sum of £25 as compensation due to him under the Act, and also found him entitled to £5, 5s. of expenses.”
The following questions were submitted for the opinion of the Court:—“(1) Whether the fact that the respondent held a decree for aliment against the deceased and received payment of aliment from him constituted the respondent a part dependent within the meaning of the Act? (2) Whether the fact that the deceased left a dependent wholly dependent on him excludes the claim of the respondent as a part dependent on the deceased?”
At advising—
Page: 922↓
Now, the question mainly turns on the first section of the first schedule, head ( a), which begins, “Where death results from the injury.” It is necessary, however, to remember that the general words with which the whole section begins are “The amount of the compensation under this Act shall be,” and then follows “where death results from the injury.” Immediately after these latter words the subsection is again branched, and deals with three cases—first, “if the workman leaves any dependants wholly dependent upon his earnings;” second, “if the workman does not leave any such dependants, but leaves any dependants in part dependent;” and third, “if he leaves no dependants.” In each case the amount is stated; but it is to be noted that while in the first case (that of persons wholly dependent) three years' earnings, not exceeding 300, is the amount prescribed, in the second case (that of persons partially dependent) it is so much, not exceeding the amount payable under the first head, as is found to be reasonable. In the third case (that of no dependants) the amount is merely medical and burial expenses, not exceeding £10.
Now, it seems to me that this sub-section when read as a whole defines the total liability of the employer, and presents three alternative cases which are mutually exclusive. If there are persons wholly dependent, then the employer has got to pay three years' earnings not exceeding £300. The next case contemplated is that of those partially dependent, but their right is conditioned by the opening words “if the workman does not have any such” (i.e., wholly dependent) “dependants.” if he has left such wholly dependent dependants, then the Act does nothing for the partially dependent. There is no provision authorising the arbitrator to carve a provision for them out of what is devoted to the wholly dependent, and no provision for any further liability on the part of the employer than what is set forth in the three cases put in the sub-section. The first schedule in which those provisions occur is expressly pointed to in the first section of the Act itself, which declares generally the liability of the employer, as stating the rules of that liability. Accordingly, the employer is only liable in those events which are provided for in the first schedule.
I am therefore for answering the second question in the affirmative. This supersedes the first question, which was not debated.
The Court answered the second question in the affirmative, and found it unnecessary to answer the first question.
Counsel for Appellant— G. Watt— Glegg. Agents— Macpherson & Mackay, S.S.C.
Counsel for Respondent— Orr— J. D. Miller. Agents— Inglis & Orr, S.S.C.
